Green v. Industrial Accident Commission

SPENCE, Acting P. J.

Petitioner seeks annulment of the award of the respondent Commission granting him the ordinary compensation prescribed by the Workmen’s Compensation, Insurance and Safety Act but denying him additional compensation upon his claim of serious and wilful misconduct.

Petitioner had been employed for many years as a boilermaker by respondent Western Pipe and Steel Company, a corporation. In 1929', the company was engaged in constructing a number of steel tanks for the storage of oil on a lease of the General Petroleum Company near Bakersfield. On December 5,1929, petitioner was injured on that job when a hoisting derrick collapsed while being used to complete the construction of one of said steel tanks. H. B. Ritchie was the “foreman” on said job while one Cordova was the “assistant foreman” directing the work on the particular tank when petitioner was injured. Petitioner was given medical treatment and was paid approximately $4,000 in compensation. A dispute apparently arose over an alleged loss of hearing resulting from the injuries and petitioner filed his application with the respondent Commission on February 1, 1932. No claim of serious and wilful misconduct had been made up to that time and none was made in said application. It was not until after a hearing on said application that petitioner on March 1, 1932, filed his claim with the respondent Commission for additional compensation because of alleged serious and wilful misconduct. On July 28, 1932, the Commission made its findings and award and subsequently amended the same in the order granting a rehearing, which order was made solely for the purpose of making such amendment. The findings and award as amended showed petitioner to be entitled to total compensation in the sum of $6,450, but the respondent Commission found that “the injury was not caused by serious and wilful misconduct on the part of any executive, managing officer, or general superintendent of the defendant corporation”. It further found and concluded that petitioner’s application for additional compensation on that ground was barred by the limitation found in section 11 (i)

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of the act. We need not discuss the effect of said section 11 (i), which was enacted after the date of petitioner’s injury, for we believe that the above-mentioned finding was supported by the evidence and is determinative in this proceeding.

Petitioner’s claim of serious and wilful misconduct related solely to the conduct of the “assistant foreman”, Cordova. Under the terms of section 6 (b) of the act a corporate employer is liable for additional compensation only when there is serious and wilful misconduct “on the part of an executive or managing officer or general superintendent thereof”. Petitioner therefore states the question involved as follows: “Was 'assistant foreman’ Cordova the ‘managing officer ’ of respondent employer sufficient to meet the requirements of sec. 6 (b) of the act?" The respondent Commission contends that Cordova was not "an executive or managing officer or general superintendent” of the respondent employer and in our opinion this contention must be sustained.